',1058
, :,93FE;DERAL RE,P;QRTI!lll.
.
a.n:dither,efore llna,ml>iguous, ,the time .wb,en,the pre· mium: will ·be a.nd'9f::t1le time. wllen,a, forfeiture accr.ue if not theretofore paid. T.b.e in the present jnstanqe, the. tlle:cQmpany, andfrQJ;Illllck of'abmtY,'Qr neglect, 'nQ:t rthe outhe 19th day of J,WY, migllt yery,readily th!lt faillll'ft to pay. OJ;l. t4at1day worked a Jorfeijll,l"e of,tbe policy; ',fpr in t@,firstpartof tl1e,n,otice he was distip,ctJy so toJd, although.w/;QJlgly,as has been shown. Receiving such I19tice,from and 19th day of Jqly, If.j96, having come and gone without the paymeJ1,t of the premium, .it might very well have4appened that, the' insured. relied upon·.:the, information thus conveYed, a,nd apandOlled all effort to pay the premium, without looking tot4e statute of York, or to the grace clause printed on tl;J.e .back of ,the notice, attention was also, directed in the, notice" by one of, which provisions J:te was still l'J,llowed 8 days, and by the other 30day,l!I, after July 19, 1896, within which to pay the premiu,m, and f()rfeiture of. his. policy. ,,' The 'below in respect to the requested by: tbeplaintfftill:error. and in respect t(): those given to the jury, pursuant to fOl';tJ:te p1ilintiff in error, being .in: ll-CcorQl\Ilce, with tIle views above expressed, the judgment .is atnrmed. . ''II; ';' . !
ACO. INS. c.;, i
co.
'.
OF "
NEW YORK v. ·· ',"
.i
,
(CIrcuit, Court of:A.ppeals, Fifth.· Circuit. Februao- ·28·. 1899.) i'
No. '. :01' PRoOI' OJ' ....'. ;
L
ACClDlllN·T 1NSiURANCE--,ColfeTRucTlONOJ'. ACClDIjlN'J,'A,LD;EATlL', ".,:
under' ,tpe. prescribed : a defense of res judicata ·must be plea,4e4, to be a,vaUable. . 'L, pio FEDERAl. 01' EvrDENCE. , Testim6ny In reference to the citizenship 01' the parties Is only' adwls.' sible hi support ofaUegations properly made In the preli.dlngs. 1
I.·JUDGMENTS.....PLEAD1NG·:48· ADJUDtOATlON.
, In Error to''i:heCircJ.it'Court oftheUnited Statesfof the Eastern
District of
,',I', j
',..
[.
This was an action In court for the Easterndlstl!lcto,f Louisiana by Mrs. Harr:i>et Barker,wldow'llf.J. W. Barker, against the Preferred Accident Insurance :Oompany of.;;New. YOI'Ili, upon a policy of tnsurance·ofthat!CODlpany he1dby him Ver,. 1
As to I!-lleg%Uons
01',
citizenshIp, seenQte to !3hlpp J'. Wllllam.s, .10 C. O. A. thereto, undllr to Mason v. Duliagham,
PREFERRED ACC. INS. CO. V. BARKER.
159
dJct was for $3,000, the full amount of the polley. The case was brought here by said insurance company upon a writ· of error. For former report, see 32 C. C. A. 124, 88 Fed. 814. Mr. J. W. Barker held an accident polley for $3,000 with the Preferred Accident Insurance Company. It was what is known as a "restricted policy," It insured him solely against the effects of bodily injury caused solely- by external, violent, and accidental means. A further clause provided tbat it did not extend to or cover any cause of disability or death whatever, except' where the claimant shall furnish to the company direct and positive proof of such disability or death which resulted proximately and solely from accidental causes. Death by freezing was excepted. Clause 2 of conditions in the policy provides that, "unless direct and positive proof of death or injury and duration of disability shall be furnished to the company within the following limit of time: (1).As to fatal injuries, within two months from the date of death, · · · then all claims based thereon shall be forfeited." Other conditions named in the polley were numerous, but become unimportant un· del' the assignment of errors in this case. Testimony taken at the trial tended to show that Barker lost his life as follows: Quite early in the morning of the 26th of November, 1896, he went hunting near the Rigolets, and was last seen alive about 7 o'clock in the morning; About 5 o'clock that evening one J, G. Sanford found him dead, standing 'hi mud and water up to between his knees and hips, leaning across his' boat, and grasping in his hands bunches of grass that had been growing near the shore. The ducks he had shot, together with the decoys he had been using, his coat, and other property were arranged in the, ,boat. The bow ofh'is boat was reilting upon shore. Sanford, who wail a tall strong man., lifted him out with considerable difficulty, aild placed him in the boat. It was shown that Barker had been in good health, and that he was an experienced hunter. The evidence also showed that the day was very cold; that Ifhad been rainfnghard; that Barker was a small man, weighing about 120 pounds. There were no marks of violence on the body, and Dr. Fenner testified, from :his examination, he came to the'conclusion that Barker died from being exposed to the cold weather, etc., 'as the result Of being bogged- up, ant;l; was,unable to eKtricate himself, and avoid the effects of the cold 'Yeatherand water.
Hewes.T. Gurley, for plaintiff in error. ,Solomtm Wolff, for defendant in error. Before McCORMICK, Circuit Judge, and SWAYNE, District Judges. '
and
SWAYNE, District Judge (after stating the facts as above). .At the close of the testimony defendant's counsel moved the court to instruct the jury peremptorily to find a verdict for the defendant on the grounds following: ' "First, that the proofs of death were not furnished to the company in accordance with the requirements of the policy, and were not such proofs as were required;, second, that the judgment of the court herein on the exceptions acts as res judicata to the effect that these proofs were not sufficient; third, on the ground that it has not been affirmatively or positively shown that the death of J. W. Barker was the result of an accident."
The only assignment· of errors brought up in the record is the following: "The lower court erred· In refusing the motion made by defendant, at the close of the testimony, to direct a verdict for the defendant, and refusing such verdict, as fully shown by the reasons and statements contained in bill of· exceptions No. 1; and erred in refusing to admlt the testimony regarding the· cftizenship, as shown by the statements contained in bill of exception.
93
NO.,2,-cY'IliclJ, bHls ot, exceptions Nos. 1 and 2, are; by r,eference, made a. p/lrt of ,this of errors, as if repeated and copied in flJll." : '
The first question raised by the assignment of eti-'ors; linder bHl of exceptions No. 1, is in reference to furnishing proofs of death to ''the company in with the requirements of the polic;y. A. careful inspection of, the record shows that said proofs were sent and received by the company long before the time had fYot'irE'd in which they should be sent under the terms of thepo1icr.. Said proofl!!consisted of a sworn ·. staterilent of John G. Sanford, detailing the circumstances un,der wbich he found the body of the deceased,; the affidavits of the clergyman and the 'undertake!" who officiated at the funeral that they identified the body as that of J. W. Barker; the forinal questions and answers propounded to the beneficiary, Harriet :Barker, also sworn to; the certificate of the board of health for the parisb of Orleans, describing the deceased, stating calIse of death to be exposure; and. certificate of Dr. Fenner, assistant, coroner, 3.1;ld the ((ertificate of coroner, as to death from exposure. It would be difficult to see how more thorough and satisfactory proofs of death could have been furnished than the above, under the" circumstances: ' We do not lose sight of the contentIon of the company, as expressed ip. its letters, at the trial, and brought up here as one of the principal. grounds of defense, that the company must be furnished with direct and positive proof that death resulted proximatelya:t;ld solely from accidental ca 11 Res. It ,is ,admitted that no one w:itn,es,sed the death of .the insured, but there are other evidencesthull the testimony of eyewitnesses that can properly and conbe considered, and, if the jury .find them vincing, they are direct and positive enough to sustain the verdict. The previous good health of the deceased, the condition of the body when found, the depth of mud and water in which he died, the difficulty of remoying the body from the bog, the position and contentS of the boat, and the character and temperature of the weather, were important facts, properly submitted to the jury, to to tpe issues fOI.'med inthe case. In this case,. as in many others,,,,llere the body of the insurell is found, and no one has witnessed the death, 'the .circumstances and S,urroundings are the on(y eviden6e that can be produced, to determine the cause of the death. Such facts must be submitted to tlie jury for their eonrsideration, an.d ;their findin.g thereon Jsfinf\l., It woul\l have error for the trIal judge to hllye,complied with request of tpe 4flefendant below and directed a verdict for it. The I'ecord,· 'lioesnot disclose the fact that the ruling of ,the circuit court lipon the e)t:ceptions to the first petition was res cata. Said, lll.J.p.,:there is no plea in the record speciaJly setting up "res judicata1' as a defense, according to, thepracticeprescribed)n the; state of Louisiana. Therefore, thlilt defense'<;linnot be urged here. The testimony in tp the Citizenship o,fthe parties .litigant was not admissible for the same reason. It· was not pleaded, and,aceording to:the practice here, evidence could uot be admitted at the {i-ial;
WHITE V. INSURANCE CO. OF NEW YORK.
1131
on that subject. As this disposes of all the questions raised by the assignment of errors, we believe the judgment of the lower court should be affirmed. WHITE et a1. v. INSURANCE CO. OF NEW YORK. SAME v. GERMAN ALLIANCE INS. CO. (Circuit Court, D. Rhode Island. March 6, 1899.) 1. INSURANCE-BROKERS-AuTHORITY.
An insurance broker was employed to obtain $40,000 additional insurance on property which was insured for $60,000, and thereafter, on being notified that defendants desired to cancel the policies purchased, procured other insurance to be substituted therefor, the policies for which had been mailed, but not received, at the time of the loss. Held, that the broker had no authority to increase the total insurance beyond $100,000, and hence that both sets of policies were not in force at the time of the loss. Mere possession of policies by assured at the time of loss is not conclusive evidence that they were in force at that time. The fact that an insurance broker was authorized to procure insurance does not make him the agent of assured to receive notice of cancellation of the policies. An insurance broker was authorized to procure certain insurance, and given discretion in the selection of the companies. At various times previous to the loss, he procured substituted insurance, selecting new companies, without objection from assured. Previous to the loss, defendants notified the broker that they desired to cancel the policies, whereupon he, witlJ knowledge of assured, procured other insurance. The new policies had not been delivered at the time of the .loss, nor had assured surrendered the old ones, but he made claim under the substituted policies, and received moneys thereon, and afterwards surrendered the old policies. Held, that the substitution was authorized, and that defendants' liability on the old policies had ceased before the loss.
2. SAME-POLICIES-AssURED'S POSSESSION-EFFECT.
3.
SAME-BRaKER-AGENT OF ASSURED.
4.
SAME-AUTHORITY TO SUBSTITUTE.
E. S. Mansfield, J. M. Ripley, and J. Henshaw, for defendants.
F. W. Tillinghast and W. G. Roelker, for plaintiffs.
BROWN, District Judge. These are actions on fire policies, and were heard upon evidence, jury trial being waived. Before the loss, the broker who had placed the policies in suit was notified that the defendants desired to cancel the policies. Thereupon the broker contracted for new insurance to replace the old, and notified the defendants' agents thereof. The new policies were issued by other companies before the loss, but were in the mails at the time of the fire, and had not reached the broker or the plaintiffs. The old policies, now in suit, were in the possession of the plaintiffs at the time of the fire. The plaintiffs claim that the policies in suit were in force at the date of the fire. for the reason that no effective notice of cancellation had reached the plaintiffs before the loss. They claimFirst, that, 9.t the time of loss, both the original policies and the new policies were in force, and that the liability of the defendants is to contribute to a loss of $83,000 on the basis of a total of $127,000 cOf insurance; second, that if both sets of policies were not in force, 931".-11